Citation Nr: 22015203 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 12-10 992 DATE: March 16, 2022 ORDER Entitlement to special monthly compensation (SMC) based on the need for aid and attendance prior to August 27, 2020, is granted. FINDING OF FACT Prior to August 27, 2020, the Veteran has been shown to require the aid and attendance of another person to help with basic tasks which cannot be performed due to his service-connected disabilities. CONCLUSION OF LAW The criteria for SMC due to the need for aid and attendance prior to August 27, 2020, are met. 38 U.S.C. §§ 1114(l), 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.350(b), 3.352(a) (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active naval service from June 1989 to June 1991. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2019 and February 2021, the Board remanded the claim for additional development. The case has since been returned to the Board. SMC Aid and Attendance On March 4, 2011, the Veteran filed a claim for an increased rating for his service-connected back disability and entitlement to a total disability rating based on individual unemployability due to his service-connected disabilities (TDIU). In a July 2011 rating decision, the RO denied entitlement to an increased rating and TDIU. The Veteran appealed that decision. During the pendency of the appeal, the Veteran also raised the issue of entitlement to SMC based on the need for regular aid and attendance. In a September 2020 rating decision, the RO granted entitlement to SMC effective August 27, 2020. As VA has a duty to maximize a claimant's benefits, the issue of entitlement to SMC prior to August 27, 2020, remains on appeal. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008) (finding that SMC benefits are to be accorded when a Veteran becomes eligible without need for a separate claim). Special monthly compensation is payable where service-connected disabilities render a Veteran in need of the regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Aid and attendance is warranted if there is a factual finding that service-connected disabilities render a Veteran in need of the regular assistance of another person to attend to the activities of daily living (dressing and undressing, hygiene, toileting, etc.) or to protect himself from the normal daily hazards and dangers of his environment. 38 U.S.C. § 1114(l); 38 C.F.R. §§ 3.350(b)(3), 3.352(a). Therefore, the dispositive question in this appeal is whether the Veteran's service-connected disabilities rendered him in need of the regular aid and attendance of another person at any point from March 4, 2011, to August 27, 2020. Prior to August 27, 2020, service connection was in effect for major depressive disorder (at 70 percent beginning July 28, 2011); radiculopathy of the left lower extremity (sciatic nerve) (at 20 percent); encopresis (at 30 percent beginning July 28, 2011); lumbosacral strain with intervertebral disc syndrome (IVDS) (at 20 percent); radiculopathy of the left lower extremity (femoral nerve) (at 20 percent beginning October 23, 2018); and irritable bowel syndrome (at 10 percent beginning July 28, 2011). His combined rating was 40 percent beginning March 4, 2011, and 90 percent beginning July 28, 2011. In March 2011, the Veteran stated that he was missing an average of 10 days per month from work due to his service-connected back disability. He stated that he was in fear of losing his job. In April 2011, he stated that he was on probation at work because of the time he missed. He also stated that his wife had to tie his shoes every day prior to going to work. In April 2011, his employer indicated that they did not require the Veteran to lift at work but that due to his excessive absences, they would have no other choice but to terminate his employment. During a May 2011 VA examination, the Veteran reported experiencing back pain radiating into his left lower extremity with left leg weakness. He stated that he could function with medication but that during flare-ups, he had to walk slow and that he could not bend over. He stated that he could not bend over and needed help getting dressed. He stated that he experienced lower back pain three to five times per day and that the episodes lasted for two hours. He reported that he was able to brush his teeth, take a shower, drive a car, cook, and walk. He indicated that he was unable to vacuum, climb stairs, dress himself, take out the trash, shop, perform gardening activities, and push a lawn mower. X-rays of the lumbar spine were normal. Range of motion of the thoracolumbar spine were within normal limits. The examiner stated that there was no functional limitation of standing and walking. Later that month, in May 2011, the Veteran reported that he lost his job because of time missed due to his service-connected back disability. In July 2011, the Veteran reported that he had very limited mobility in walking and could barely tie his own shoes. He stated that he could no longer walk across a parking lot and had to have his wife tie his shoes every day. He also stated that most days he was unable to dress himself. In December 2011, the Veteran's wife (K.A.) stated that she had to tie the Veteran's shoes for him every day because he could not bend over and that he could not pick up and hold their 2-year old daughter. She stated that she noticed him holding his hand on the wall while walking down the hallway. In an August 2012 letter, the Veteran stated that he was very forgetful, could not focus or concentrate, could not walk very far, and could not drive more than 10 to 15 minutes due to back pain. He stated that his wife had to bathe and dress him every day. The Veteran's records from the Social Security Administration (SSA) include a July 2012 Adult Function Report in which he reported that he required assistance from his wife in putting on his socks and shoes, and bathing from the waist down. He stated that he could wash his own hair, shave, feed himself, and use the toilet himself, and that he helped with grocery shopping twice per week. He also stated that he did small chores around the house that did not require bending or standing for long periods of time. His wife also reported that she helped him with his socks and shoes, and helped him to bathe. A September 2012 medical consultant report indicated that the Veteran reported that he was only able stand for about 15 to 20 minutes and could only walk about 100 feet. He stated that he used a cane to help with balance. The examiner indicated that the Veteran could be expected to stand or walk approximately four hours during an eight-hour day and had no limitations with sitting. The physician also noted that he required an assistive device for ambulation and had frequent postural limitations with bending, crouching, and stooping due to his gait instability and low back pain. It was noted that he frequently could not lift any weight and only occasionally could lift 10 pounds. It was also noted that a 2007 magnetic resonance imaging (MRI) showed mild leftward posterolateral foraminal disc bulge at L4-5. A November 2012 mental assessment noted that the Veteran was independent in personal care, could prepare simple meals, and could go out alone and drive a car. It was noted that he was unable to do household chores. The SSA determined that the Veteran was disabled with a primary diagnosis of discogenic/degenerative back disorder and a secondary diagnosis of affective/mood disorders. A November 2012 MRI of the Veteran's thoracolumbar spine showed stable, mild degenerative disc disease at L4-5. During an October 2018 VA spine examination, the Veteran reported that his routine daily activities were severely limited due to his incessant low back pain, which was made worse with prolonged sitting, standing, bending, dressing himself, lifting, and reaching upward with his arms. An August 2020 X-ray of the lumbosacral spine showed bilateral spondylolysis at L5 with no associated spondylolisthesis with no other abnormalities. An August 27, 2020, VA examination report for housebound status or permanent need for regular aid and attendance indicated that the Veteran had limitation with bending at the waist, which resulting in inability to manage hygiene needs and limitation with standing/ambulating duration due to progressive back pain. It was also noted that he required assistance ambulating across the front yard to his car. A March 2021 VA examination report for housebound status or permanent need for regular aid and attendance indicated that the Veteran required mild to moderate assistance with dressing and undressing, bathing, grooming, keeping himself ordinarily clean and presentable, and toileting. The examiner noted that he required assistance with anything below the waist and with ambulating to the toilet and getting down and up. In August 2021, the Board remanded the claim to obtain a retrospective opinion concerning the Veteran's need for regular aid and attendance from March 4, 2011, to August 26, 2020. In September 2021, a VA examiner interviewed the Veteran using video conferencing technology and reviewed his claims file. The examiner noted that relevant imaging from 2007, 2013, and 2016 showed findings that were fairly benign and that there was no radiographic evidence of radicular symptoms. The examiner noted the statements indicating that the Veteran's wife had to tie his shoes and that he walked while balancing the wall and stated that those reports were consistent with acute flare-ups of back pain resulting in severe pain for generally temporary periods. The examiner noted that he did not physically examine the Veteran, but that based on the imaging, chronicity, level of care required, and his own expertise, it was not reasonable to extend the aid and attendance period to 10 years prior. In this case, the lay evidence indicates that the Veteran has required aid and attendance throughout the appeal period. Both he and his wife have stated that he needed help tying and putting on his shoes, and bathing below the waist due to limitations from his service-connected back disability. Although the September 2021 VA examiner essentially indicated that the Veteran's back disability was not severe enough to warrant aid and attendance on a regular basis prior to August 27, 2020, he also stated that the reports of requiring help with dressing and bathing were consistent with temporary flare-ups of severe pain. In May 2011, the Veteran reported that he had flare-ups two to three times per day, which lasted up to two hours. Therefore, the frequency of his flare-ups would suggest that he required aid and attendance on a daily basis. Based on the foregoing, the Board finds that the evidence for and against the claim is in approximate balance. Therefore, the benefit of the doubt must be resolved in favor of the Veteran, and entitlement to SMC based on the need for aid and attendance prior to August 27, 2020, is warranted. 38 U.S.C. § 5107(b) (2018); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Mishalanie, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED